Thursday, August 14, 2014

If structural reform is impossible as a result of political capture by vested interests, collapse is the only "fix" left.

A few days ago I discussed the overlap of two bankrupt systems: Healthcare (a.k.a. Sickcare) and our legal system--malpractice. Today we hear from two correspondents on possible fixes to malpractice: Ishabaka (M.D.) and Randy, who combines both legal and medical expertise in his family: he is an attorney and his wife is a physician.

First up: Ishabaka (M.D.), a physician who has practiced medicine in both Canada and the U.S. and served an an emergency room doctor for many years.

My solution would be - first - a no fault system, where anyone who suffers an injury as a result of contact with the health care system is compensated a REASONABLE amount - like the workers compensation system.

One side of the story I didn't mention is I have seen a case of clear malpractice where the suit was WON by the two doctors who prescribed naproxen to a patient for gout, when it was known he had a giant stomach ulcer. Every third year medical student knows naproxen can cause ulcers to bleed. The man woke up in the middle of the night with a massive bleed from his ulcer, and died. The thing is, there is an alternative treatment for gout - colchicine - that is perfectly safe in stomach ulcer patients, and should have been prescribed.

The second half of the system would be a really good review mechanism - I'd base it on the F.A.A. - that reviews what happened when a patient suffers injury due to contact with the health care system. I think in many instances, it would be found nothing could have helped - people get sick and die. I had a friend give a woman with no history of penicillin allergy a shot of penicillin for gonorrhea and she had a severe allergic reaction and died at age 21 - in spite of textbook treatment for severe drug allergy. Stuff happens.

In some cases, doctors WOULD be found to have practiced below the standard of care. I find these docs fall into three groups - one - the ones with an inadequate knowledge base who want to be good docs - these docs can mostly practice safely with some supervised training and study - two - the addled docs - drugs, alcohol, mental illness - Alzheimer's disease is becoming a real concern as our doctor population ages - some of these docs can be rehabilitated and some can't - and a small proportion of sociopaths who just don't give a damn - who should permanently lose their licenses.

Lastly, people have to realize that not every condition is diagnosable. I had a relative who was a doctor involved in the Apollo moon program. One of NASA's biggest worries was an astronaut getting sick during a (VERY) expensive mission resulting in the mission being aborted. Now, to get into the astronaut program, you have to be almost Olympic athlete healthy - I know, a doc friend of mine who was a super athlete and a multi-talented genius applied, and didn't get in.

Next they spent a FULL WEEK getting examined and tested by every specialist known to medicine. To make a bad pun, the cost of their physical exams must have been astronomical - and STILL - one of the astronauts developed an irregular heartbeat while on a mission - luckily it wasn't serious enough to scrub the mission. We simply cannot afford to do an "astronaut physical" on every patient with every complaint.

Next up: Randy:

I wanted to offer my perspective on your recent blog entry on malpractice. I am in my mid 30's, and have been practicing exclusively Plaintiff's personal injury law for the last 9 years. I handle only automobile accidents, and don't have any first-hand experience with medical malpractice. My wife is a physician, as are many of our friends, so I like to believe I have a fairly objective view.

I'll speak to what I know best, which is the average automobile accident case. You are correct in that many people believe being involved in an automobile accident is akin to a winning lottery ticket. I believe some of this mentality stems from the overall degeneracy of the culture, some from hard fiscal times, and some from aggressive lawyer advertising. I am self-employed, and have the luxury of practicing law as a profession.

Most personal injury cases are handled by medium size firms that are set up like factories, with little regard for professionalism. Those firms offer mediocre wages and long hours to associates (No partnership track usually), and make the partner/owner very wealthy.

There are indeed quid pro quo relationships between these firms and doctors (often chiropractors) that seek to over-treat people who may or may not be injured, but who have a viable insurance claim.

Sometimes deception is used to solicit such patients/clients (Hello Mr. Jones, I'm calling from the insurance company, and we want to have you checked out right away, I am sending a taxi to pick you up!). More often the client / patient is a willing participant. Often times medical bills are outrageously high when the doctor or chiropractor finds out an auto insurance claim is involved. Even the innocent patient / client is unknowingly socked with excessive charges and services by unscrupulous doctors and chiropractors.

Now here is the other side. Perhaps in response to the above abuses, and perhaps in a desire to increase the stock price, most insurance companies have completely abandoned their fiduciary duties to both their insureds and to injured parties. Every single claim is treated as fraudulent. The discretion of the individual insurance adjuster has been largely removed, and they have a rigid set of guidelines set not on the actual injuries, but on a desire to maximize profit.

Before someone has retained an attorney, Adjusters will try to offer injured people a quick settlement ($250 or $500) to resolve their claim, even though they know the cost of an emergency room visit will likely exceed that amount, and they leave the injured party responsible for the rest of their own bills. Often times it is the elderly that get preyed on in this way.

If a lawsuit is filed, no matter how clear the injury is, they will hire an "Independent Medical Examiner" to examine the plaintiff, and/or review the medical records. Doctors that give objective opinions don't receive repeat business from the insurance companies. Doctors that toe the Defense line do.

Some of these doctors make more money per year doing these insurance company examinations than they do practicing medicine. One particularly prolific fellow I have had the displeasure of deposing made well over 1 million dollars doing these exams over the course of 4 years. I have had Defense attorneys threaten to notify my client's creditors (so that they could place a lien) of the potential for a judgment, so as to force the client to settle without going to trial. The average Defense attorneys conduct is just as immoral / unethical as Plaintiff attorney.

The point of all of this is that yes, the legal system is badly flawed. I would dare say the "sickcare" system is even more so. Both pale in comparison to the Corporate, Governmental, and Military industrial complex excesses. I don't believe there is an answer or solution besides collapse. I run my law practice in as ethical a manner as I can while continuing to remain solvent. I feather my own nest with an eye towards personal resiliency for me and my family. I know I cannot save the world, and seek to instead save myself and mine. That's all any of us can do.

Thank you, Ishabaka and Randy, for your experientially informed commentaries. In general, insiders don't criticize other insiders, and this pressure to hide the sector's dirty little secrets and avoid the blowback of ratting out the rotten wood dooms the system to collapse. This dynamic is scale-invariant and functions in every broken system: politics, finance, healthcare, law enforcement, the war on drugs gulag, the military, the military-industrial complex, the national Security State--the list is endless.

If structural reform is impossible as a result of lobbying (i.e. the political capture of governance and regulation) by vested interests that profit handsomely from these broken systems, collapse is the only "fix" left.

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